LISA JACOBS v. WINIFRED I. LI, JANE FISHER CARLSON, CONNIE K. GUTIERREZ, ALAN D. ROSE, JR., STEVEN GARFINKEL, STEPHEN J. LAROCQUE, as they are the Members of the Town of Weston Zoning Board of Appeals, TOWN OF WESTON, and CORMIER HOME CONSTRUCTION LLP.

MISC 15-000196; MISC 15-000197; MISC 15-000198

March 24, 2016

Middlesex, ss.

FOSTER, J.

MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

Procedural History

Lisa Jacobs filed three complaints, in case nos. 15 MISC 000196, 15 MISC 000197, and 15 MISC 000198, on May 27, 2015. These actions were consolidated on July 9, 2015, and on July 27, 2015, plaintiff filed Plaintiffs Verified Amended Complaint (complaint). At a telephone status conference on August 11, 2015, the plaintiff stipulated that the defendants in the complaint are the members of the Town of Weston Zoning Board of Appeals (Board), the Town of Weston (Town), and Cormier Home Construction LLP (Cormier). The Motion to Dismiss as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier (Cormier Motion to Dismiss), was filed on August 31, 2015, and the Municipal Defendants Motion to Dismiss (Town Motion to Dismiss) was filed on September 2, 2015. The Plaintiffs Opposition to Defendants Motion to Dismiss was filed on September 30, 2015. The motions were heard on October 5, 2015 and each denied by Memorandum and Order Denying Defendants' Motions to Dismiss, issued on November 18, 2015 (November 2015 Memorandum and Order). The November 2015 Memorandum and Order limited the scope of the instant action to the amended building permit, as discussed below.

Defendant Cormier Home Construction, LLC's Answer to Plaintiffs Verified Amended Complaint was filed on November 30, 2015. The Board and Town filed their Answer of Municipal Defendants to Amended Complaint on December 4, 2015. At a December 8, 2015, a telephone status conference, the parties agreed that the sole issue in this action was whether the amended building permit properly issued, and further agreed to have this remaining issue decided by the Land Court rather than by remand. On December 10, 2015, the court allowed the Motion for Leave to Withdraw Appearance and Motion to Withdraw Appearance filed by attorney John L. McGowan, attorney for the plaintiff, and withdrew the appearance of attorney McGowan on behalf of Plaintiff Lisa Jacobs. Ms. Jacobs has since appeared in this action pro se.

The Municipal Defendants' Motion for Summary Judgment, Memorandum in Support of Municipal Defendants' Motion for Summary Judgment, and Municipal Defendants' Rule 4 Statement of Material Facts (Municipal Defendants' Facts) were filed on January 5, 2016.
Cormier's Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier (Cormier Motion for Summary Judgment), Concise Statement of Material Facts in Support of Defendants' Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC Francis Cormier and Bernard Cormier (Cormier's Facts), Statement pursuant to Rule 4 of the Rules of the land Court in Support of Defendants' Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier, Brief in Support of Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier, Affidavit of Francis J. Cormier in Support of Defendants' Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier (Cormier Affidavit), and Appendix in Support of Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier (Cormier Appendix) were filed on January 6, 2016.

On February 10, 2016, the plaintiff filed a Motion for an Extension of Time; on February 16, 2016, the Board and Town filed a Motion to Continue Hearing Date. The court allowed both motions on February 18, 2016. An Opposition in Part and Assent in Part to Motion to Continue Hearing Date was filed by the plaintiff on February 22, 2016 and denied by the court on February 23, 2016. The plaintiff filed an Emergency Motion for Time Extension on February 29, 2016, which was allowed in part that same day.

On March 7, 2016, the plaintiff filed an Opposition to Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier, Memorandum in Support of Opposition to Municipal Defendants' Motion for Summary Judgment, Affidavit of Marilyn Jacobs in Support of Opposition to Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier, Plaintiff's Response to the Municipal Defendants' Statement of Material Facts, Plaintiff's Response to the Cormier Defendants' Statement of Material Facts, Plaintiff's Statement of Material Facts, Appendix (Plaintiff Appendix), Opposition to Municipal Defendants' Motion for Summary Judgment, and Affidavit of Lisa Jacobs (Lisa Jacobs Affidavit). An Amendment to Opposition to Motion for Summary Judgment as against Defendants Cormier Home Construction LLP, Cormier Custom Homes LLC, Francis Cormier and Bernard Cormier and Town of Weston Zoning Board of Appeals etc. et. al. was filed by the plaintiff on March 15, 2016. The Summary Judgment Motion was heard on March 15, 2016, and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

2. The defendant Cormier Home Construction LLP [Note 1] (Cormier) owns the property at 33 Colchester Road, Weston, Middlesex County, Massachusetts, by a deed July 23, 2014 and recorded in the Middlesex South Registry of Deeds (registry) at Book 64043, Page 551 (Property).

4. The defendant Town of Weston (Town) is a Massachusetts municipal corporation.

5. The Property is located in the Towns Single Family Residential District B. It consists of a 46,506 square-foot lot. At the time it was conveyed to Cormier, there was a 2,695 square- foot single family residential structure on the Property. The Property is bordered by vegetated wetlands and is in the vicinity of Coffee Creek.

6. Ms. Jacobs resides in the Jacobs Property, a single family home, with her mother. Their residence is located on the other side of Colchester Road from the Property.

7. On December 4, 2014, Cormier obtained a permit to demolish the existing structure on the Property.

8. On December 30, 2014, the Town Building Inspector issued Building Permit No. 2014-544 (Building Permit) to Cormier for the construction of a new home on the Property (House). The Building Permit stated that the House would include an attached 3-car garage, a 1,700 square foot finished basement, and a walk-up unfinished attic. The total residential gross floor area (RGFA) was calculated as 4,650 square feet.

9. On April 10, 2015, the Town amended the Building Permit to include the construction of two street-side dormers on the House (Amended Building Permit).

10. On April 23, 2015, Ms. Jacobs requested that the Building Inspector institute an enforcement action with respect to the dormer construction. The Building Inspector denied her enforcement request that same day.

11. On May 11, 2015, Ms. Jacobs filed a further enforcement request with the Building Inspector.

12. On May 18, 2015, Ms. Jacobs filed an appeal of the Building Inspectors denial of her enforcement request with the Board. As set forth in the Board and Towns supporting materials for their motion to dismiss, Ms. Jacobs filed with her appeal approximately 500 pages of supporting documents, including various emails relating to the Property and the Jacobs Property but not relating to the subject of the appeal.

13. On May 21, 2015, Ms. Jacobs received notice from the Town Manager that her application and filing fee had been received.

14. The same day, the Building Inspector sent Ms. Jacobs a letter stating that (a) she had altered the Boards Application for Hearing Form and failed to provide a clear response as to what relief she was seeking, (b) he was including another application form, and (c) he was returning her filing fee.

16. These actions were consolidated on July 9, 2015, and on July 27, 2015, Ms. Jacobs filed Plaintiff's Verified Amended Complaint (complaint).

17. With respect to the height of the House, the Town's zoning bylaw (Bylaw) states, in relevant part:

E. HEIGHT REGULATIONS

1. On all land located within the Town of Weston, no building shall exceed the height limitations set forth in the table below. In all cases, height shall be determined by measuring the vertical distance from the Grade Plane to the highest point of a building.

2. Table of Height Limitations

DISTRICT:

Commercial, Single Family Residential (A, B, C, D)

HEIGHT LIMITATION:

Pitched Roofs 37 feet or 2-1/2 stories (a) whichever is less

NOTES:

(a)

Notes:

a) The height of all buildings located within this District shall be measured to the highest point of the entire building. Stories shall be measured from the floor level of the lowest story above grade. Attics in pitched roof construction shall constitute ½ story.

The sum of the horizontal area(s) of the above-grade floors in the residential building(s) on a lot, excluding unfinished attics but including attached or detached garages. The RGFA shall be measured from the exterior face of the exterior walls.

21. The dormers cannot be accessed from the inside except through a three-foot high by two-and-one-half-foot wide passageway or through the attic's exposed studs, ductwork, and insulation. Cormier Affidavit, ¶¶ 4-7.

22. The dormers attach to the outside of the House and are decorative. Municipal Defendants' Facts, Exh. A, Affidavit of John F. Field, P.E., ¶ 6; Cormier Affidavit, ¶¶ 2 & 4.

Discussion

In its summary judgment motion, Cormier first challenges standing. Both Cormier and the Town and the Board seek summary judgment that the Amended Building Permit should be affirmed on the merits. The questions of standing and the merits of the Amended Building Permit are discussed in turn.

In the zoning context, a defendant can rebut an abutters presumption of standing at summary judgment in two ways. First, the defendant can show that, as a matter of law, the claims of aggrievement raised by an abutter, either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect. 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. Second, where an abutter has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption. Id. at 703. [T]he defendant may present affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis. Id., citing Kenner, 459 Mass at 119120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 2324 (2006). A defendant need not present affirmative evidence that refutes a plaintiffs basis for standing; it is enough that the moving party demonstrate by reference to material described in Mass. R. Civ. P. 56(c), [ 365 Mass. 824 (1974)] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving a legally cognizable injury. Id., quoting Standerwick, 447 Mass. at 35; Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). Once the presumption of standing has been rebutted successfully, the plaintiff [has] the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the plaintiff has standing and rendering summary judgment inappropriate. 81 Spooner Road, LLC, 461 Mass. at 703 n.15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519521 (2011).

In other words, if her presumption of standing is rebutted, Ms. Jacobs would bear the burden to present evidence that would establish that she will suffer some direct injury to a private right, private property interest, or private legal interest as a result of the Amended Building Permit that is special and different from the injury the Amended Building Permit will cause to the community at large, and that the injured right or interest is one that c. 40A or the Bylaw is intended to protect, either explicitly or implicitly. Id. at 700; Kenner, 459 Mass. at 120; Standerwick, 447 Mass. at 27-28; Marashlian, 421 Mass. at 721; Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005); Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129 , 132-133 (1992); see Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998). Aggrievement is not defined narrowly; however, it does require a showing of more than minimal or slightly appreciable harm. Kenner, 459 Mass. at 121-123 (finding the height of the new structure to have a de minimis impact on plaintiffs ocean view). The evidence must be both quantitative and qualitative. Butler, 63 Mass. App. Ct. at 441. Quantitative evidence must provide specific factual support for each injury the plaintiff claims. Id. Qualitative evidence is held to a reasonable person standard. Id.

Ms. Jacobs's standing to challenge the Amended Building Permit hinges on her ability to show and maintain a presumption of standing. There is a dispute of fact whether Ms. Jacobs is entitled to a presumption of standing as an abutter to an abutter. It is undisputed that Ms. Jacobs lives at the Jacobs Property, located across the road from the Property. As a resident, Ms. Jacobs may assert standing; she need not be the owner of the property at which she lives. Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass. App. Ct. 1005 , 1006 (1985). In her affidavit, Ms. Jacobs has alleged harm based on increased density. Lisa Jacobs Affidavit, p. 56. Density concerns can form a basis for aggrievement. See Marhefka, 79 Mass. App. Ct. at 519; Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 11-12 (2009); Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 295-296 (2008). Drawing all inferences in her favor, Ms. Jacobs has alleged harm sufficient to withstand summary judgment on the grounds that she lacks standing. The court turns to the substance of Ms. Jacobs's challenge.

The Amended Building Permit.

The question of whether the Building Permit properly issued has already been adjudicated in case no. 15 MISC 000142, Jacobs v. Li, 23 LCR 704 (2015), in which final judgment entered dismissing Ms. Jacobs appeal of the Building Permit with prejudice. Any question on the Building Permit, such as whether the pre-dormer house meets height or RGFA limitations, is not before this court. In its summary judgment motion, the Town argues that the dismissal in Jacobs v. Li precludes this entire case by operation of res judicata. The court's November 2015 Memorandum and Order in this action, however, explicitly states that the issue of the Amended Building Permit remains before the court. November 2015 Memorandum and Order, p. 6.

Ms. Jacobs's complaint alleges two reasons why the Amended Building Permit violates the Bylaw: (1) the dormers cause the House to exceed the Bylaw's height limit, and (2) the addition of the dormers to the attic increases the Houses RGFA beyond that allowed by the Bylaw. Complaint, ¶ 12. Therefore, the sole remaining issue in this action  and the only question properly before the court  is whether the Amended Building Permit for the addition of two street-side dormers complies with the height and RGFA provisions of the Bylaw. The court will look at whether the dormers, under the Amended Building Permit, changed either the House's height or the House's RGFA.

Because the question of the Houses height as allowed under the Building Permit was the subject of case no. 15 MISC 000142, which was finally adjudicated in Jacobs, supra, the only way that the Amended Building Permit could be found to violate the Bylaw height restriction is if the dormers increase the height of the House from what was constructed under the original Building Permit. The dormers are located below the roof ridge line of the House, and, because of that placement, do not increase the height of the House. Municipal Defendants' Facts, Exh. A, Affidavit of John F. Field, P.E., ¶ 6; Cormier Affidavit, ¶ 3 and Image A. The photograph in Image A to Cormier's Affidavit is particularly persuasive: the photo clearly shows the House's roof ridge line and, connecting below is the ridge line of the dormer. Since the dormers have not been constructed above the roof ridge line, it cannot be shown that the Amended Building Permit's street-side dormers increased the height of the House. The first alleged reason for the Amended Building Permits violating the Bylaw fails.

Ms. Jacobs's second alleged reason for a Bylaw violation is that the addition of the dormers causes the House to exceed the maximum RGFA. The issue of whether the House complies with RGFA under the original Building Permit, like the issue of height discussed above, is final. The Amended Building Permit would violate the Bylaw only if the addition of the dormers caused the Houses RGFA to increase beyond the maximum allowed under the Bylaw. The Bylaw states that unfinished attic space is not included in the calculation for RGFA. Plaintiff Appendix, Exh. 102; Cormier Appendix, p. 16 (Zoning By-Law and Map, Town of Weston, Massachusetts, § II. Definitions, p. 7 (as amended through December 2013)). The Houses attic remained unfinished after the dormers were installed. Municipal Defendants' Facts, Exh. A, Affidavit of John F. Field, P.E., ¶ 4; Cormier Affidavit, ¶¶ 2, 3, & 12. The only interior access to the dormers is through a three-foot high by two-and-one-half-foot wide passageway, with exposed studs, ductwork, and insulation covering the attic, Cormier Affidavit, ¶¶ 4-7, rendering the dormers unusable other than as decorative features. Municipal Defendants' Facts, Exh. A, Affidavit of John F. Field, P.E., ¶ 6; Cormier Affidavit, ¶¶ 2 & 4. Attached to the unfinished attic, the dormers  unusable and decorative  do not add to the RGFA calculation and cannot increase the House's RGFA. The Amended Building Permit does not alter the RGFA under the original Building Permit. The second claimed reason for a Bylaw violation fails.

The court notes that while the attic remains unfinished for now, it is conceivable that an owner may seek to turn the attic into living space in the future. If an owner ever seeks to convert the attic into living space, a new building permit or a variance would be required. At that time, aggrieved parties may, on appropriate grounds, appeal the issuance of the building permit or variance. Whether a party can challenge that future issuance, however, is not before the court.

The Amended Building Permit was properly issued. The dormers comply with the Bylaw and are allowed under the Amended Building Permit.

Conclusion

For the reasons set forth above, the Municipal Defendants' Motion for Summary Judgment and the Cormier Motion for Summary Judgment are each ALLOWED. Judgment shall enter dismissing the complaint with prejudice.

SO ORDERED

FOOTNOTES

[Note 1] There is some confusion in the record as to whether Cormier Home Construction is an LLP or an LLC. As Cormier describes itself in its pleadings as an LLP, the court will treat it as described.